Opinion
G058713
05-11-2021
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC LUIS MAGDALENO, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17HF1619) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger and Lance Jensen, Judges. Reversed conditionally and remanded with directions. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Dominic Luis Magdaleno appeals from the judgment of conviction entered after a jury found him guilty of two counts of making criminal threats, two counts of stalking, one count of dissuading a witness from reporting a crime, and three misdemeanor counts of making harassing and annoying communications. Defendant contends the trial court (Judge Lance Jensen) imposed an unauthorized sentence by sentencing defendant to a consecutive, full two-year middle prison term on the witness dissuasion count under Penal Code section 1170.15. For the reasons we explain, we reject this contention.
All further statutory references are to the Penal Code.
Defendant also contends the trial court (Judge Kimberly Menninger) erred by denying his motion for a Marsden hearing after his trial counsel declared a doubt about defendant's mental competence. We agree with defendant, as conceded by the Attorney General, that Marsden error occurred here. The error is not harmless beyond a reasonable doubt because the trial court did not inquire, and the record does not otherwise provide any information, regarding the basis for defendant's request for a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We therefore conditionally reverse the judgment and remand with directions to the trial court to hold a Marsden hearing and to appoint new counsel for defendant if the court concludes that the assistance rendered by his prior attorney was ineffective. We direct the court to reinstate the judgment, however, if it concludes otherwise following the Marsden hearing and thus declines to appoint new counsel, or if it appoints new counsel and that counsel either declines to file a motion, or the court denies any such motion that is filed.
FACTS
Defendant was convicted for offenses committed against eight women. Our summary of facts is limited to the facts underlying defendant's offenses against two of those women, specifically his crimes of stalking and making criminal threats against Chloe G. and his offense of dissuading a witness against Lindsey S. as they are the only facts relevant to the issues presented in this appeal.
In August 2016, Chloe started receiving e-mails from defendant. Chloe was in high school at the time and did not know defendant; she never responded to defendant, hoping he would stop communicating with her. At first, the e-mails she received were "pretty nonsensical" and she did not pay much attention to them. Defendant's communications started to increase in number and frequency. Over time, defendant would contact her through every social media platform on which she had a presence, including Instagram, Tumblr, and Twitter.
Initially, Chloe started receiving about 20 communications from defendant each day; the communications became more personally directed at her and were increasingly offensive, sexually explicit, and threatening in addition to being nonsensical. In the fall of 2016, defendant wrote to Chloe: "You are my girlfriend now. It is official on 11/27. Don't ever fucking backstab me or I will unleash all hell upon you."
Because the evidence of the extremely offensive and sexually graphic substance of defendant's innumerable communications in this case is not relevant to the issues on appeal, we do not recount them here in detail.
Chloe was afraid to attend her high school soccer games after defendant sent her the message: "Since you're my bitch now, I'm going to put your soccer game schedule in my daddy phone for getting things done gorgeous." In another e-mail, he wrote, "LOL, you got a game at [the name of a particular high school]. That school looks like so picturesque, miniature from the hills. Your high school and mine look a lot like cuz they're both old and same style and the renovations with the main campus." Chloe felt unsettled because the communication indicated defendant knew where and when she would be attending a soccer game, where she went to high school, and what her high school looked like. Defendant also sent her pictures of a penis.
After Chloe made her Instagram account private and blocked defendant, in December 2016 he e-mailed her the message: "Unblock me on Instagram, bitch. I am tired of scrolling over just to talk to your ungrateful ass."
In early 2017, Chloe reported defendant's communications to the police. She felt afraid and concluded that her strategy of not responding to him in order to deter him from sending communications had failed; she felt she needed to take another step to stop him.
Chloe testified that after contacting the police, she sent them "pretty much every email [she] was getting" from defendant. --------
Defendant continued to contact Chloe. He sent Chloe a picture of her with a male friend; she suspected defendant found the picture after looking at her friend's social media profiles. Defendant also sent Chloe a picture of a gun with the comment: "I'm going to get this one when I clear that legal shit, 9 mill and 3.7 10-round magazine, double action with de-cocking lever is perfect carry concealed. This is a Czech company from the Soviet bloc, sturdy and reliable." At the end of the e-mail, defendant stated, "A stun gun is like 20 bucks and you can even incapacitate someone real quick."
Defendant continued to send threatening, obscenity-laced messages telling Chloe what he planned to do to her sexually. He also threatened to "fucking sock your faggot boy in the face after like some daddy's black widow spider girl on a motorcycle shit." Defendant suggested he would force her to have sex with him. On one occasion he also wrote: "I just plotted a course from where I am to [a location near Chloe's house]. Don't worry, I am coming to get you. Hold on you, shady bitch."
Defendant eventually started to contact some of Chloe's friends including Lindsey. Like Chloe, Lindsey had an Instagram account and in late March 2017, Lindsey started receiving messages from defendant; Lindsey was 18 or 19 years old at the time. After she read his messages, Lindsey reached out to Chloe because she had previously heard Chloe talk about being harassed by someone.
In one message she received through Instagram, defendant wrote to Lindsey: "LOL. I had like two doofus sheriff detectives come and like say I was harassing her for months with like printouts and shit of calling her a little slut and shit, and like saying never to talk to her again or I'm getting arrested, and how I showed her some gun and it was scary and some other bullshit, like, she was snitching me out for some reward money." Lindsey felt uncomfortable receiving that message because she felt she was at that point "involved." At some point she had learned that Chloe had reported defendant's communications to the police. Like Chloe, Lindsey blocked defendant from her Instagram account. Lindsey also shared communications she received with law enforcement.
Defendant addressed the police officers' involvement in an e-mail to Chloe in which he wrote: "Somebody rhymed with showy took all my private emails to some detectives, not of this countries or God service and betrayed America again." In April 2017, he wrote to Chloe: "How could my little baby puppy love trot in the police station and turn me like this? I thought you were going to make me a good for you."
On June 26, 2017, defendant sent Chloe several e-mails from his eponymous Gmail address. In one e-mail, he wrote "do you ever think about it" in the subject line and in the body of the e-mail he wrote "killing those two investigator[s] like they Blues Clues Hardy Brother faggot stupid band geeks. I do. We can shoot them like Bonnie and Clyde. I can take the dyke bitch's gun from her holster." In another e-mail sent to Chloe that same day, defendant stated: "You can die, Chloe, in a lot of different ways like a car accident or some creepy Christian guy you thought was nice and wanted to give you advice about me and then strangle[s] you." The e-mail continued to discuss different ways Chloe could die. Defendant also sent Chloe two sexually explicit e-mails and another e-mail with the subject line "read this" which contained a link to an article defendant described as: "This is actual stalking, and burglary." And in yet another e-mail sent that same day, defendant stated, "You don't talk to those investigator faggot pig idealist douchebag liberals anymore."
The following month, Chloe started receiving calls on her cellphone from an unknown number as well as texts in the middle of the night. She received, among others, text messages stating, "I need you to unblock me so I can call on the phone" and "I want to bash my head into a wall because of you and your problems you created. Give up before I get more pissed off." In another text message, defendant wrote: "You are just another fucking rotten country bitch and then I swear I will never be nice to you ever again. Goodnight, whore."
In an e-mail dated July 1, 2017 from defendant's Gmail account, he wrote to Chloe, "and you're gonna be a good little bitch from here on out, huh" and "don't tell anybody about our secret life, winky face, or I'm going to punish you some more."
After defendant was arrested on July 10, 2017, Chloe stopped receiving messages for a brief period. She started receiving messages again, however, in August.
In August 2017, defendant also resumed sending offensive, disturbing, and/or obscene e-mail messages to Lindsey. In one e-mail to Lindsey, defendant stated: "Don't be a faggot drama snitch retard. The money will be second to the art. You've seen how many stupid bitches fuck this up." Toward the end of the e-mail, defendant wrote, "I am in charge, baby girl." Lindsey understood the term snitch in the e-mail to refer to Chloe's report about defendant to law enforcement.
Defendant continued to send sexually explicit communications to Chloe as she began attending college in the fall of 2017. In addition to making sexually explicit references that were directed at her, in October 2017, defendant wrote to Chloe: "You are worthless to me. I'm going to kill you."
In a November 2017 e-mail to Lindsey, defendant wrote a sexually explicit message that was directed at Lindsey and then wrote: "And Chloe still hasn't cleaned up her little investigator mess. Could you please explain to this weak ass bitch the importance of me having a phone and money and my laptop and getting a lawyer or like what the fuck is this bitch's deal, Lindsey? Why is she like fucking retarded? She lost me like $3,000 and stopped me from making money. I need a phone."
He also wrote, "Tell this fucking doofus bitch and her mom to go get a lawyer and order me a new phone because I am basically done with Chloe." Lindsey understood defendant's reference to "this weak ass bitch" and the importance of his having various things as expressing his desire to get out of what he had done and his efforts to find a way to persuade Lindsey to help him. Toward the end of the e-mail he wrote, "I will come down after school one day next week. I am always down there." Lindsey understood defendant to be referring to himself appearing in person somewhere where she was; she believed he might follow through and show up physically at some point.
In another e-mail he asked Lindsey: "Are you ever going to put these weak ass bitches in line? Like do you know how much your retarded bitch ass friend messed up everything?" Finally, defendant sent an e-mail to several people, including Lindsey, which stated: "I want you to know I have complete control over me and everything I do, so you should stop fucking around and start giving me whatever I want because I'm going to make you understand." He continued, "because I will literally and figuratively watch and laugh as you drown in your tears" and "because you'll regret ever telling anybody about our little secret, undercover spy thing here. Try me."
Like Chloe, Lindsey never responded to any of defendant's communications.
PROCEDURAL HISTORY
Defendant was charged in an amended information with two felony counts of making criminal threats in violation of section 422, subdivision (a) (counts 1 and 3), four felony counts of stalking in violation of section 646.9, subdivision (a) (counts 2, 4, 6, and 7); one count of dissuading a witness from reporting a crime in violation of section 136.1, subdivision (b)(1) (count 5); and three misdemeanor counts of making harassing and annoying communications in violation of section 653m, subdivisions (a) (counts 8 and 9) and (b) (count 10). Counts 3 and 4 were alleged to have been committed against Chloe, and counts 5 and 6 were alleged to have been committed against Lindsey. The amended information contained the allegation that, as to all counts, defendant committed the offenses as a result of sexual compulsion and for the purpose of sexual gratification within the meaning of section 290.006.
The trial court granted defendant's motion to bifurcate trial on the section 290.006 allegation for determination by the court. The jury found defendant guilty as to counts 1 through 5, and 8 through 10. After the jury was unable to reach a verdict on counts 6 and 7, the trial court declared a mistrial as to those counts.
The trial court found defendant had committed the offenses for the purpose of sexual gratification under section 290.006.
The court sentenced defendant to a total prison term of five years eight months by imposing a principal three-year aggravated term on count 2, an eight-month (one-third the middle term) consecutive term on count 4, and a consecutive full middle term of two years on count 5. The court stayed execution of sentence on counts 1 and 3 under section 654. The court also sentenced defendant to 180 days in the Orange County jail on each of counts 8, 9, and 10, thereby imposing a total jail sentence of 540 days. The court granted the prosecution's motion to dismiss counts 6 and 7.
Defendant appealed.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY IMPOSING A FULL, CONSECUTIVE MIDDLE TERM
SENTENCE UNDER SECTION 1170.15 FOR DEFENDANT'S COMMISSION OF THE OFFENSE OF
DISSUADING A WITNESS.
Defendant argues the trial court pronounced an unauthorized sentence by relying on section 1170.15 to impose a full middle term, consecutive sentence on count 5 for committing the offense of dissuading a witness against Lindsey in violation of section 136.1, instead of imposing a consecutive subordinate sentence of one-third the middle term for that offense under section 1170.1. Defendant's argument is without merit.
Section 1170.1 sets forth the general rule that a consecutive subordinate sentence should be imposed at one-third the middle term. Section 1170.15 is one of several statutes creating an exception to this rule. (See People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478.) Section 1170.15 provides: "Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury." (Ibid., italics added.)
At the sentencing hearing, the trial court stated it selected the upper three-year prison term on count 2 as the principal term. The court acknowledged its discretion to impose a concurrent sentence on count 5, but stated it declined to do so. The court stated that in imposing a consecutive subordinate sentence, section 1170.15 provides an exception to the rule set forth in section 1170.1 and requires the court to "sentence the defendant to a full middle term of imprisonment." The court found that exception applicable and imposed a consecutive midterm sentence of two years on count 5.
Defendant argues section 1170.15 does not apply. The Attorney General argues defendant forfeited his challenge to the consecutive full middle term imposed on count 5 because he not only failed to raise that issue at the sentencing hearing, but in his sentencing brief he acknowledged that section 1170.15 applied to authorize a full consecutive term on count 5.
Assuming defendant's argument is not forfeited, he has failed to show the court imposed an unauthorized sentence. In People v. Anderson (2010) 50 Cal.4th 19, 26, the California Supreme Court explained: "'[T]he "unauthorized sentence" concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]' [Citation.] '[A] sentence is generally "unauthorized" where it could not lawfully be imposed under any circumstance in the particular case.' [Citation.] 'An obvious legal error at sentencing that is "correctable without referring to factual findings in the record or remanding for further findings" is not subject to forfeiture.'"
The Attorney General argues that the consecutive full middle term imposed on count 5 did not constitute an unauthorized sentence because substantial evidence supported the finding that Lindsey was a witness or a potential witness within the meaning of section 1170.15 with regard to defendant's convictions for committing the offenses of making criminal threats to and stalking against Chloe. We agree.
Defendant does not challenge his felony convictions for the crimes he committed against Chloe or for committing the offense of dissuading a witness in violation of section 136.1 against Lindsey. Therefore, if sufficient evidence showed Lindsey was a witness or a potential witness with respect to his offenses against Chloe, the consecutive full middle term imposed on count 5 was authorized. (§ 1170.15.)
Substantial evidence showed Lindsey was aware of communications defendant sent to Chloe. Lindsey discussed e-mails she herself received from defendant with Chloe and shared those communications with law enforcement. Defendant complained to Lindsey about Chloe talking to the police, called Chloe a snitch, told Lindsey he was "in charge," and urged her to help him deal with Chloe and the mess she created for him by involving the police (e.g., he asked Lindsey "[a]re you ever going to put these weak ass bitches in line?"). Apparently unsatisfied with her efforts to help him deal with Chloe, he sent Lindsey an e-mail threatening, "I want you to know I have complete control over me and everything I do, so you should stop fucking around and start giving me whatever I want because I'm going to make you understand" because "I will literally and figuratively watch and laugh as you drown in your tears" and "you'll regret ever telling anybody about our little secret, undercover spy thing here. Try me."
In his opening brief, defendant argues that his two-year sentence on count 5 is unauthorized because the jury did not find him guilty of stalking Lindsey. Section 1170.15, however, does not require the jury to have found Lindsey to be a victim of the predicate felony as well as the victim of the dissuasion of a witness offense for that statute to apply. It only requires that Lindsey have been a witness or potential witness with respect to a felony offense for which defendant was found guilty. As discussed ante, Lindsey was a witness or potential witness with regard to defendant's convictions for making criminal threats to and stalking Chloe.
Defendant also argues his sentence on count 5 is unauthorized because Lindsey's testimony regarding Chloe was merely "incidental to the charges pertaining to Chloe, particularly since it was undisputed that [defendant] was the person who contacted the victims." He notes "[t]he vast majority of Lindsey's testimony and argument about the value of her testimony was restricted to charges concerning [defendant's] behavior toward Lindsey."
Defendant's argument ignores the requirements of section 1170.15 for imposing a consecutive middle term sentence on the witness dissuasion count. The relevant question is whether substantial evidence showed Lindsey was a witness or potential witness regarding defendant's offenses of making criminal threats and stalking Chole and we have concluded more than sufficient evidence establishes that point. The extent to which Lindsey's testimony was necessary to those convictions is immaterial.
For the first time in his reply brief, and without citing any legal authority, defendant argues that the allegations of the information regarding count 5 limit the scope of section 1170.15's applicability in this case as conditioned upon defendant's conviction for stalking Lindsey. The amended information alleges: "Count 5: On or about and between August 24, 2017 and December 07, 2017, in violation of Section 136.1 (b) (1) of the Penal Code (dissuading a witness from reporting a crime), a felony, [defendant] did unlawfully attempt to prevent and dissuade [Lindsey], a victim and a witness, from making a report of that victimization to a peace officer, state and local law enforcement officer, probation, parole and correctional officer, prosecuting agency, and judge." (Italics added, some capitalization omitted.) We read the amended information's phrase "of that victimization" to refer to those offenses of which Lindsey was a victim and/or a witness. We reject defendant's narrow construction of that phrase to plead a restriction on 1170.15's applicability to only that circumstance in which defendant is convicted of stalking Lindsey herself.
Our construction is consistent with the version of CALCRIM No. 2622 given to the jury in this case on the offense of dissuading a witness from reporting a crime, which stated in part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant maliciously (tried to (prevent/ or discourage) Lindsey S. from making a report that she or someone else) was a victim of a crime to a state or local law enforcement officer; [¶] 2. Lindsey S. was a (witness and/or crime victim); [¶] AND [¶] 3. The defendant knew (he) was (trying to (prevent/ or discourage) Lindsey S. from reporting victimization and intended to do so." (Some capitalization omitted.)
We find no error.
II.
THE TRIAL COURT ERRED IN FAILING TO HOLD A MARSDEN HEARING.
Defendant contends the trial court erred in failing to hold a Marsden hearing. We agree and conditionally reverse the judgment and remand the case for the trial court to hold such a hearing.
A.
Governing Legal Principles and Standard of Review
"When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel's inadequacy. [Citations.] 'A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Cole (2004) 33 Cal.4th 1158, 1190.)
We review the denial of a Marsden motion under the abuse of discretion standard. (People v. Cole, supra, 33 Cal.4th at p. 1190.) "'[A]ppellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would "substantially impair" the defendant's right to effective assistance of counsel.'" (People v. Abilez (2007) 41 Cal.4th 472, 488.)
B.
Background
At a pretrial trial readiness conference, defendant's trial counsel informed the court that a doubt had arisen in his mind as to the defendant's mental competence. Defendant responded by requesting a Marsden hearing pursuant to the following colloquy:
"[Defense counsel]: Your Honor, at this time, I've declared doubt pursuant to 1368.
"The Court: Then the court will suspend criminal proceedings pursuant to 1358-1370 and set no bail at this time.
"The Defendant: Your Honor, I would like to declare possible incompetency with my lawyer and request a Marsden hearing.
"The Court: Well, that won't be happening today. We're going a different route at this point. [¶] What I need to get, however, are the names of the doctors."
The prosecutor and defendant's trial counsel each requested a psychologist to examine defendant, both of whom the court appointed. The court ordered defendant to appear about six weeks later at the hearing on the outcome of the appointed doctors' evaluations.
At that hearing, the court found defendant was not a mentally incompetent person under section 1368, terminated competency proceedings, and reinstated criminal proceedings. Defendant did not make another Marsden motion.
C.
The Court Erred by Denying Defendant's Marsden Motion; Because Our Record Is Silent
as to Defendant's Reasons for Requesting a Hearing, the Trial Court's Error Was
Prejudicial.
Citing People v. Solorzano (2005) 126 Cal.App.4th 1063 (Solorzano), defendant argues the trial court erred by denying his Marsden motion without conducting a hearing, notwithstanding that his motion was preceded by defense counsel raising an issue about defendant's competency. In Solorzano, supra, 126 Cal.App.4th at pages 1069-1070, the Court of Appeal concluded a trial court must conduct a Marsden hearing even though the defendant's complaints about counsel arose during the pendency of competency proceedings.
In the respondent's brief, the Attorney General concedes the trial court erred by failing to conduct a hearing, but argues the error was harmless beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126 [beyond reasonable doubt standard for determining prejudice].) Reversal is not required if the record shows beyond a reasonable doubt that the defendant was not prejudiced by the trial court's failure to hold a Marsden hearing. (People v. Reed (2010) 183 Cal.App.4th 1137, 1148.)
A Marsden hearing is conducted because "[t]he defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom." (Marsden, supra, 2 Cal.3d at p. 123.) Here, we cannot conclude the court's error in failing to conduct a Marsden hearing was harmless beyond a reasonable doubt.
Defendant's Marsden motion was oral; there was no written motion identifying the basis for defendant's request for a Marsden hearing. Significantly, the trial court did not ask defendant why he was requesting such a hearing and defendant was not otherwise offered the opportunity to explain the reason for his motion. Defendant had not previously made such a motion and never made another Marsden motion. The record is therefore completely devoid of any information about defendant's reason for requesting a Marsden hearing.
The Attorney General argues the trial court's error in denying defendant's Marsden motion was harmless because "the timing of the [defendant's] request suggested that he merely disagreed with counsel's request for a competency evaluation" and defendant was later deemed competent by the court. The Attorney General's argument is entirely based on speculation. In response to defendant's request for a Marsden hearing, the trial court did not ask for an explanation of the reason and told defendant, "Well, that won't be happening today." Therefore, we can only speculate concerning the basis of the request for the Marsden hearing.
As in Marsden, supra, 2 Cal.3d at page 126, "[o]n this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because [he] might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving [him] an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to [the finding he was competent to stand trial]."
Because defendant could potentially demonstrate inadequate representation or an irreconcilable conflict at a Marsden hearing, we conditionally reverse the judgment and remand to the trial court hold a Marsden hearing. (People v. Armijo (2017) 10 Cal.App.5th 1171, 1183.)
DISPOSITION
The judgment is conditionally reversed, and the case is remanded with directions to the trial court to conduct a Marsden hearing. If defendant's request for substitute counsel is granted, the trial court is directed to appoint new counsel to assist defendant and to entertain such motions as newly appointed counsel may file. The court shall reinstate the judgment if, after a hearing: (1) defendant's request is denied; (2) the request is granted but substitute counsel declines to file any further motions; or (3) the trial court denies any such motion filed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.